United States v. Argimiro Solano

584 F. App'x 827

Opinion

MEMORANDUM *

Defendant Argimiro Solano appeals his conviction for illegal reentry after deportation in violation of 8 U.S.C. § 1326. On appeal, he challenges the district court’s denial of his motion to dismiss his indictment. We have jurisdiction under 28 U.S.C. § 1291.

We have previously held that unlawful sexual penetration under section 289(a)(1) of the California Penal Code is a crime of violence for purposes of 18 U.S.C. § 16(b) because it “is precisely the type of felony that by its nature” raises “a substantial risk that physical force will be used during the course of the crime.” United States v. Sandoval-Orellana, 714 F.3d 1174, 1179 (9th Cir.2013) (internal quotation marks omitted). Because section 289(a)(1) is identical in material respects to section 261(a)(2), that conclusion applies here as well, and we hold that Solano’s prior rape conviction under section 261(a)(2) of the California Penal Code constitutes a “crime of violence” as defined by § 16(b).

Because the crime of rape under section 261(a)(2) is a crime of violence for purposes of § 16(b), it meets the definition of “aggravated felony” under 8 U.S.C. § 1101(a)(43). Accordingly, Solano’s collateral challenge to his 1998 removal fails, and the district court did not err in deny ing Solano’s motion to dismiss his indictment. 1

AFFIRMED.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1 . Because we decide on this ground, we need not consider whether section 261(a)(2) also meets the definition of aggravated felony because it falls within the generic definition of rape.